Unfair competition and free riding lawyer

Updated 26 October 2026

Key contact: William Mak (Lawyer - Founder)

Competition is free, but it must remain fair. Poaching that disrupts a team, a customer list taken by a former employee, disparagement on social media, the copying of a website or product: MOSAIK defends businesses that fall victim to these practices, and those wrongly accused of them.

MOSAIK steps in as soon as a risk of unfair competition emerges, before a dispute takes hold. The firm helps businesses prevent questionable practices, secure the departure of employees and preserve useful evidence. When a dispute arises, it acts as claimant or defendant, before both the commercial and the civil courts. Depending on the case, its work combines the firm's expertise in commercial litigation, employment law and intellectual property.

The four forms of unfair competition

No specific statute defines unfair competition: it rests on ordinary civil liability (Article 1240 of the French Civil Code), which requires a fault, damage and a causal link between the two. That is its strength: it protects businesses that cannot rely on any exclusive right, whether a trade mark, a patent or copyright. The case law has identified four broad categories of wrongful conduct:

• Confusion: imitating a name, logo, packaging or get-up, where this creates a risk of confusion with a business or its products;
• Disparagement: spreading, among customers, partners or the public, remarks liable to discredit a business's products or services;
• Disruption: practices that disturb the running of a business, in particular wrongful poaching and the misappropriation of files, orders or know-how;
• Free riding (parasitisme): placing oneself in a business's wake to take undue advantage of its efforts, know-how or investments.

Poaching and employees leaving for a competitor

Recruiting a competitor's employees is not wrongful in itself: employees are free to change employer, and the recruiting business is free to hire them. Poaching becomes wrongful when it is accompanied by unfair manoeuvres or disrupts the business left behind: simultaneous departure of an entire team, targeting of the people who hold the know-how or the customer relationship, encouraging employees to terminate their contracts without serving their notice.

For a business facing group departures, MOSAIK reconstructs the chronology, gathers the relevant communications and looks for signs that customers have been approached. The firm reviews non-compete and non-solicitation clauses, then assesses whether it is appropriate to apply for interim relief. For the recruiting business, it checks the candidate's commitments and provides for a written statement confirming that no documents belonging to the former employer are being brought along. MOSAIK thus coordinates the unfair competition and employment law aspects.

Misappropriation of a customer list

A customer list is one of the assets most exposed when an employee leaves. No business owns its customers, but the list that brings them together may be protected on several grounds, which can apply cumulatively: unfair competition, trade secrets where the business has taken reasonable protective measures and, under criminal law, criminal breach of trust (abus de confiance) and handling (recel). Our article Customer list theft by a former employee: what to do sets out the legal grounds, recent case law and the action plan.

The priority is to preserve the evidence: access to files, download histories, communications and traces of customers being approached. A letter sent to the other side too early may jeopardise its collection. Where the facts justify it, the action should also target the business exploiting the list, and not just the former employee. Under Article 145 of the French Code of Civil Procedure, MOSAIK can ask the judge for an investigative measure by ex parte application, in order to gather evidence at the competitor's premises without forewarning it.

Disparagement

Disparagement consists in publicly discrediting a competitor's products or services. The commercial chamber of the Cour de cassation holds that disclosing information liable to discredit a product amounts to disparagement, even if the information is accurate, unless it relates to a matter of general interest, has a sufficient factual basis and is expressed with a degree of moderation (Cass. com., 9 January 2019, no. 17-18.350). Where the criticism targets the person or the company itself, rather than its products, the law of defamation applies instead, with a limitation period of only three months: the legal characterisation must therefore be settled from the outset.

Disparagement may take the form of messages sent to shared customers, social media posts, fake online reviews or biased comparisons. It may also result from letters sent to distributors alleging an infringement on which no court has ruled. MOSAIK promptly arranges for the publications to be recorded by a commissaire de justice (judicial officer), requests their removal and, if necessary, applies to the interim relief judge (juge des référés) to bring the disturbance to an end and to seek publication of a correction.

Copying of a website, product or concept without a registered trade mark

Whatever is not protected by an exclusive right may, in principle, be freely reproduced. Free riding sets the limit: according to the Cour de cassation, it is “a form of unfairness, constituting a fault, which consists, for an economic operator, in placing itself in the wake of another in order to take undue advantage of its efforts, its know-how, the reputation it has acquired or the investments it has made” (Cass. com., 18 March 2026, no. 24-17.016). The victim must identify the individualised economic value on which it relies (Cass. com., 26 June 2024, no. 23-13.535), but need not be in competition with the copier.

The copying of a website may concern its texts, photographs, structure or visual identity. Where these elements are original, copyright may support an infringement action. Failing that, an action based on free riding may be considered if its conditions are met. MOSAIK advises clients to date and keep records of their creative work and investment, in particular agency invoices, mock-ups and archives, to have the online copy formally recorded and to register a trade mark for important distinctive signs.

The same judgment of 18 March 2026 offers a second chance to a holder whose trade mark has been invalidated: where its infringement action is dismissed for lack of an exclusive right, it may bring a claim based on free riding for the first time on appeal, provided that claim rests on the same facts. The best strategy is still to combine the legal grounds from the outset, carefully linking the facts relied on to each of them.

Taking action: evidence, interim relief and proceedings on the merits

Depending on the situation, several steps may be taken:

• having a commissaire de justice draw up an official report, in particular to preserve evidence of content published online;
• applying, before any trial, for an investigative measure under Article 145 of the French Code of Civil Procedure, by ex parte application where the element of surprise is necessary;
• sending a formal notice where doing so is not likely to jeopardise the search for or preservation of evidence;
• applying to the interim relief judge for measures to bring a manifestly unlawful disturbance to an end;
• bringing proceedings on the merits to obtain an order to cease the practices and damages, together with, where appropriate, publication of the decision.

Where the fault is established, the commercial chamber holds that damage, even if only moral, is necessarily inferred from it (Cass. com., 12 February 2020, no. 17-31.614). Its amount, however, must be substantiated: lost margin, investments captured, reorganisation costs. The action is time-barred after five years (Article 2224 of the French Civil Code) and falls within the jurisdiction of the commercial court, or the economic activities court (tribunal des activités économiques), where the dispute is between two commercial companies, and of the judicial court (tribunal judiciaire) in other cases or where it is related to an infringement action.

MOSAIK also assists businesses accused of unfair competition. The firm examines whether the alleged faults are real, relying, depending on the circumstances, on freedom of competition, the absence of an individualised economic value or the lawfulness of a recruitment. Where necessary, it challenges the existence and amount of the damage, may apply for an ex parte order to be set aside and, where the conditions are met, seek compensation for abusive proceedings.